Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A U G U S T 2 0 1 6 7 T he Law Reform Commission of Nova Scotia is calling for a major overhaul of the province's fam- ily property legislation to better reflect modern society and the prin- ciples of equality. "The law hasn't been really amended since 1980 when the legislation was introduced," says Angus Gibbon, the commission's executive director in Halifax. In a 275-page discussion paper, the commission recommends common law couples be treated like married couples after two years together as is the case in other jurisdictions including Nunavut and Saskatchewan. "It would also bring us in line with the commonly held view out there in the public that common law cou- ples have the same legal rights as married folk, which is not true for family property purposes under the Matrimonial Property Act," says Rollie Thompson, a law profes- sor at Dalhousie University. "Those who want to contract out of this property regime can do so by way of domestic contract," he adds. In addition to an equal division of property upon separation, divorce, or death, the discussion paper, "Division of Family Property," advocates that pre-mat- rimonial property be excluded from the assets being divided. Nova Scotia and New Brunswick are currently the only provinces in Canada that include this. "All the oth- ers only look at property acquired during the marriage [or] relationship plus the increased value of property held at the date of the commencement of the marriage or relationship," says Thompson. Another proposed change involves business assets, which are at present not legally considered shareable. "That's really hard to justify in light of the purposes of the law," says Gibbon. "A spouse may have worked in the home for years, while the other spouse grew a business. That sort of situation is exactly why we have family property laws in the first place." Other property issues reviewed in the discussion paper include trusts set up by a spouse or a third party, dividing pen- sions, when and how to split debt, and how property should be divided when one spouse has died. "If these proposals were adopted, it would bring the law into line with popu- lar notions that common law couples should be treated the same as legally married couples for property purposes," says Thompson. "At present, most com- mon law spouses are unable to obtain a division of family property at the end of a relationship." — DONALEE MOULTON donalee@quantumcommunications.ca REGIONAL WRAP-UP AT L A N T I C \ AT L A N T I C \ C E N T R A L \ W E S T NS report pushes for family law reform NB AG SAYS NEUTRALITY NOT POSSIBLE IN CONSTITUTIONAL CASE I t may be the role of an attorney general to be impartial, but it is a role New Brunswick's AG says he cannot assume in a constitutional issue before the province's court of appeal. The government is currently seeking clarification about whether the use of sep- arate school bus systems for English and French students violates the Canadian Charter of Rights and Freedoms. Attorney General Serge Rousselle believes it doesn't. Such a belief means it is impossible for the province to remain neutral, he contends. As a result, says André Richard, a partner with Stewart McKelvey LLP in Moncton representing the government, "the AG was of the view that this was an appropriate case for the court to consider appointing an amicus curiae and advised the court accord- ingly." "The AG already represents the province and was of the view that none of the inter- veners met the test to be appointed a 'friend of court,'" he adds. That government's legal position was detailed in a 20-page brief prepared by Richard in response to questions from the court of appeal earlier this year. Chief Justice Ernest Drapeau asked, "Is the attorney general not supposed to be independent of the government and is he not, because of that independence, duty bound to present all arguments, both pro and con [as] the position of the government?" In its brief, the government answered this question by advocating for the appoint- ment of an amicus curiae. The brief also stated that forcing the attorney general to advance a position he believes is unconstitutional "would be contrary to his duty to uphold the law." The AG says the government would be prepared to pay the costs associated with appointing a friend of the court. That largesse, however, does not extend to the inter- venors in the constitutional case, which includes three francophone school districts and an organization representing francophone parents. The government says it has no legal obligation to pay their bills and the court cannot dictate how the government allocates funds for the administration of justice. The case is to be heard later this year. — DM

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